Governor’s Office: Appointed Vs. Elected Office Tussle
In the Constitution the office of Governor was constituted (Article 153) to stand as a bulwark against secessionism as well as to provide legislative expertise to the newly formed states. The constitutional fathers intentionally created adversarial relationship between the Governor and Chief Minister so as to ensure the letter and spirit of the constitution is followed. However political immaturity has always resulted in conflict between the two constitutional posts.
A similar case was observed between the Delhi CM and Delhi LG office. In this respective case, the Supreme Court overturned the lower Delhi High Court’s decision regarding the constitutional position of Delhi LG with respect to the elected Chief Minister.
Instances of Misuse of Governor’s Office
- Discretionary Power of the Governor- invoking Article 356 randomly to implement President’s Rule. Example- recent dissolution of Jammu and Kashmir assembly
- Karnataka Governor’s decision regarding proving majority in the assembly
- Gubernatorial Appointments- favouring bureaucrats and retired party loyalists
- Removal of incumbent Governors when opposition party wins the majority of the house
- Controversy regarding appointment to the post of Anti-Corruption Bureau (ACB)
Observations by the Supreme Court
- Delhi LG must be guided by constitutional morality
- Council of Minister’s does not have to get prior concurrence of the LG
- Delhi LG has no independent decision making power and cannot act asan obstructionist when the constitutiongives primacy to the representative form of government.
- LG’s discretionary powers are limited to three issues, including land, police and law and order. In all other cases, Delhi government must be allowed to legislate and govern.
- Both LG and CM are constitutional functionaries and must work harmonically with mutual respect.
Way Forward
- Governor decision needs to be Objective: Supreme Court has stated the “subjective satisfaction” of the Governor should be based on “objective facts”. His personal satisfaction is not important but it has to be constitutional satisfaction.
- Governor’s discretion shouldbe on Case by Case Basis: Discretion is to be exercised after proper application of mind to the facts and circumstances of any case.
- Governors decision is to be free from Bias and Political Pressure: Discretion cannot be exercised under dictation, or for an improper purpose, in bad faith, or by taking into account considerations that are irrelevant.
- The use of discretionary power of Governor should be guided by the principles set by the Punchhi Commission as well as the Sarkaria Commission to ensure public interest:
- The party or combination of parties that command the widest support in the Legislative Assembly should be called to form the government.
- The Governor’s task is to see that a government is formed — and not to try to form a government that will pursue policies that he approves.
- If no party has a majority, the Governor has to invite: a) a pre-poll alliance, b) the largest single party that is able to gain majority support, c) a post-election coalition that has the required members, d) a post-election coalition in which partners are willing to extend outside support.
